But the Doctor Committed Malpractice Didn’t He?

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As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf.  During the initial interview I often quickly discover that the individual does not have a “compensable” case.

Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:

Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain.  He decides to visit a hospital emergency room.  The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients.  He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.

Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.

During the course of a given day “technical malpractice” occurs in most hospitals.  Patients receive the wrong medications or diagnostic testing.  Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.

All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs.  Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman